Dennis Kennedy

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September 30, 2003

Changes (Good Ones) at Jurist

I don't think that anyone can seriously dispute my claim that Bernie Hibbitt's Jurist web site at the University of Pittsburgh has long been and continues to be one of the top few legal web sites. The site has so many great resources, especially the links to law professor pages for their courses - an excellent way to get up to speed and find major cases on specific areas of law.

Bernie has announced a series of major enhancements to JURIST. "The site upgrade, which is both substantive and technical, will be 'rolled out' gradually over the next two months as we test new structures and features."

The first set of changes involves bringing in student editors to increase the amount of legal news coverage.

I love to hear that a great site intends to get even better.

Posted by dmk at 08:47 PM

A Graphic Illustration of the Impact of a Blog on Web Site Traffic

Legal tech guru Jeff Beard presents a graphic illustration of the impact that adding his blog made to the traffic to his web site.

Jeff finds that over 40% of his traffic comes via newsreaders.

Jeff's stats are quite interesting. Most of what I've heard about the impact of a blog on traffic is anecdotal or estimated. My sense has been that my web site traffic has roughly tripled since I started my blog, but I haven't looked closely enough to draw any conclusions and I have a lot of other content on my site.

Now, there are a lot of different stats and a lot of ways to look at them, but I think Jeff's little study bears out the general premise that a good, well-publicized blog with an RSS feed will definitely increase your web site traffic.

Posted by dmk at 08:38 PM

September 29, 2003

From ethicalESQ: Schiltz's "Sermon" Should

From ethicalESQ:

Schiltz's "Sermon" Should Be Mandatory Reading for Everyone Who Cares About Lawyers and the Legal Profession.

It's hard to make the case for reading an 80-page law review article, but it's done here. There are important issues facing the legal profession. We need to think about them. Here's a great place to start.

Posted by dmk at 10:57 AM

Langa on Recurring Microsoft Security Problems

Fred Langa's column in Information Week today is called "Enough Already: Microsoft Must Change" and does a great job of explaining the recurring Microsoft security problems.

But he doesn't stop there.

Langa focuses on an important theme - why do buffer overflow flaws still continue to show up in Microsoft software when they've clearly been a major source of problems for years?

Langa doesn't leave the problem entirely at Microsoft's doorstep. Security issues are amplified by the huge number of people running old, unpatched software without even rudimentary firewall protection.

Langa argues, I believe correctly, that getting us out of the current security quagmire is a two-step process. First, software vendors have to step up and do a better job than what they have been doing. Second, we users must take a far more active and attentive approach to security issues.

We are part of a network and being part of a network brings both benefits and responsibilities.

Langa ends with some tough, but spot-on, comments, that we all need to think about:

"I think running an unpatched, unprotected PC is a form of negligence analogous to driving a car with bad brakes or broken headlights: You're going to get yourself into trouble, and also make things worse for everyone around you. Just as drivers who share the road must also share responsibility for safety, we all now share the same global network, and thus must regard computer security as a necessary social responsibility. To me, anyone unwilling to take simple security precautions is a major, active part of the problem."

Posted by dmk at 09:27 AM

September 25, 2003

Good Tips for Using a Public Computer

Kim Komando's Danger, danger: 5 tips for using a public PC sets out five very useful tips for using a public or shared computer safely.

Once again, it's worth noting how difficult it is to remove information and how Windows stores information in so many different places.

Posted by dmk at 07:54 AM

September 24, 2003

Does Patent Litigation Stifle Innovation? Ask Wilbur Wright

There's an ongoing debate about the role that patents play in promoting creativity and innovation. The Washington Post has a fascinating story commemorating the 100th anniversary of the Wright Brothers' first flight, and suggests that Wilbur Wright may have paid the ultimate price in patent litigation.

The story is also interesting for its discussion of the history of a prominent patent law firm and the attitudes and approaches that lawyers had to their clients in the early part of the century.

A quote:

"In the interest of full disclosure, I must tell you that the Wright Brothers case went on for so long it may have killed Wilbur in the process. A little known fact is that we dragged him to Boston for a deposition, where he became ill. He never recovered."

Worth thinking about is another quote from the article with the words of Wilbur Wright:

"Wilbur Wright died of typhoid fever in May 1912. His last letter to Fish complained about how long the case was taking. 'Unnecessary delays by stipulation of counsel have already destroyed fully three fourths of the value of our patent,' he wrote on May 4, from Dayton, Ohio. 'The opportunities of the last two years will never return again. At the present moment almost innumerable competitors are entering the field, and for the first time are producing machines which will really fly.'"

Posted by dmk at 04:27 PM

Fuzzy the Hampster, R.I.P.

It's a sad day for the Kennedy family. My daughter's pet hampster, Fuzzy, died last night. The death of any pet is very difficult, but Fuzzy was Grace's first real pet and that makes it especially hard.

Fuzzy did have a long life and touched us all with her entertaining ways.

Several years ago, Grace came to me wanting to get a pet. Several allergy tests and second opinions later, it was clear that having any fur-bearing pet was not advisable for me. We talked the doctors into an arrangement where Fuzzy was largely kept away from places I frequented and Grace picked out Fuzzy at the Humane Society.

I could not be more proud of how responsible and loving Grace was in taking care of Fuzzy. It's been a hard day for her.

We'll miss Fuzzy but are thankful for the time she shared with us and the way she touched us all.

Posted by dmk at 04:20 PM

September 23, 2003

Intellectual Property Law in Two Pages

Professor John R. Kettle, III of the Rutgers School of Law has prepared a great two-page chart summarizing intellectual property law called "What Every Litigator Must Know About Intellectual Property." By the way, when you see an article on law that includes something like "A Litigator's Guide to . . ." you should know that you have found the legal literature equivalent to the "for Dummies" books - that's not a bad thing (although I enjoy getting in the occasional dig against litigators), but it indicates you will get a short, easy to understand and to the point explanation of the subject matter.

Professor Kettle's chart is a very useful resource and will be helpful to lawyers and non-lawyers alike. He prepared the chart in connection with a Practising Law Institute (PLI) coursebook also called "What Every Litigator Must Know About Intellectual Property, which I also recommend to your attention.

Posted by dmk at 11:48 AM

Homework Assignment for 2004 Election

I've been starting to feel that the level of political discourse will sink so low by November 2004 that any enthusiasm for voting will be thoroughly drained from the voting populace. What if they gave an election and only the politicians cared about voting?

The "good" news is that there's a great posting on Kuro5hin.org called "19th Century Guide to Dishonest Argument" describing an pointing to Arthur Schopenhauer's The Art of Controversy, which delves into 38 categories of less-than-fair techniques of argument.

Might I suggest a new drinking game for the political season: drink a beer every time you recognize one of these techniques.

Anyway, a great homework text to study. Unfortunately, the intro to the post is becoming more true than any of us would want to accept: "In the public arena, rhetoric is more important than logic; sounding right is more important than being right."

Posted by dmk at 11:36 AM

September 22, 2003

Creative Commons License Warranty - Follow-up

There has been some follow-up on the Creative Commons license warranty issues raised by me and others recently.

[Note: I would have simply made the following points as a comment to the Creative Commons blog, but making a comment there seems to require acceptance of a CC license for the comment.]

Glenn Otis Brown, who, to the best of my knowledge after reasonable inquiry, is at the Creative Commons or generally able to speak on its behalf, says:

"And again, all the hysteria about getting sent to the poor house is way off base. Read my old posts on the subject again. (1, 2, 3.) There is a "reasonableness" modifier on the warranty. Liability is not unlimited to the ends of the earth. It's simply not."

At risk of being characterized as "hysterical" on the subject, I want to point out that the qualifying language of "reasonable inquiry" to which Glenn refers simply limits the instances in which a licensor might be found liable for a breach of the warranty; it has nothing to do with a cap on the amount of damages based on that liability, even if that is what was intended.

Going to the poorhouse still remains a possibility under the current language, although only in cases where there has not been "reasonable inquiry," whatever they may be found to mean.

Glenn goes on to say:

"Licensors should make a reasonable effort to verify that they're not licensing someone else's content, or that if they have, they're making a fair use. If in doubt, they should tell the world what pieces of content in their licensed work they're not sure about. If they're still in doubt, they shouldn't license their work. That's it."

I think that Glenn meant to say "using" rather than "licensing" in the first sentence, but that statement captures my point of concern. Potential licensors should be conspicuously alerted to the warranty provisions and informed that using the CC licenses requires making important choices with significant legal consequences.

That, by the way, is not a bad thing. My real concern has been that the atmosphere around the Creative Commons licenses promotes a "join up with the in-crowd" mindset when in fact people might be better advised to go slow - especially authors and content creators, given that from Glenn's comments, it is definitely not the intent of the CC licenses to maximize protection for authors.

Karl-Friederich Lenz has done a nice job of commenting on these issues here and here and here.

The last comment by Professor Lenz is in response to the point that the CC Licenses themselves explicitly contained an as-is clause and a disclaimer of all warranties, which was somewhat ironic. Glenn's comment on the CC's change to that language remains unconvincing to me, but I think even the changed language brings home the point that authors are very reluctant to give warranties of any kind when they are licensing content without any compensation (and even when they are).

The bottom line for me is that the waranties are still being discussed and, as a result, I believe the purposes of the CC licenses will be better clarified so that we can make a good decision about when and if they may be appropriate for us. For now, I personally will not use the licenses, laudable as their intent may be.

Posted by dmk at 05:34 PM

John Robb on News Aggregators

John Robb has one of the most important observations on news aggregators that I've seen. And not just because I agree with it.

He argues that:

"One thing everyone needs to understand is that in this syndication debate, the juice [is] in the aggregator tool space and not with weblog tools. Weblog tools are the weak sister in this relationship."

He continues:

"Additionally, the writing tools are much less important than the tools by which you aggregate and manipulate the data you subscribe to (the ratio of readers to writers will always be 100 to 1)."

He concludes, perhaps, ahem, controversially:

"A smart approach for Microsoft would be to embrace the quirky weblog world's RSS syndication format, put an advanced RSS aggregator with a world class search engine on everyone's desktop, and extend the RSS format into everything else."

In the legal space, I've been trying to argue that the excitement is in newsfeeds and news aggregators, far more so than in blogging itself. I'm not finding many takers, but I've just finished an article on news aggregators and newsfeeds for the ABA's Law Practice Management magazine that makes my best case to date for aggregation. It should appear soon, but not soon enough.

Here's one thing I've noticed about blogging - it drives me crazy at times, such as now, when I have good articles written and awaiting publication in print that would contribute to the debate of the day, and I have to wait and honor the publications's right not to be scooped because I release the article early.

Posted by dmk at 02:43 PM

Four Legal Land Mines for CIOs

Kathleen Melymuka has a very solid primer in Computerworld on the big ticking legal timebombs in the IT landscape called Legal Land Mines for CIOs. It's a straightforward piece that highlights issues but does not delve into them in depth.

She covers security, data retention, privacy and software license violations. Each topic is followed with a brief section on why you should care and what you should do.

Pass this article on to your favorite CIO or anyone else who may have an interest in practical legal issues in the IT area.

Posted by dmk at 02:30 PM

September 18, 2003

My New Online CLE Seminars

One of the things I'm now doing is working with DigiLearnOnline.com to make collections of my materials and presentations available as online Continuing Legal Education courses.

Two courses are now out and others will be appearing in the new future. They are:

1. E-Commerce: Key Legal Concerns - This course gives an overview of some of the most interesting issues and themes in e-commerce law and shows how developments on the Internet are pushing on traditional legal concepts and raising difficult issues for the lawyers, judges and legislators trying to adapt existing law to these new ways of doing business.

2. Email Management for Lawyers: Taming the Email Tiger - This course is designed to help attorneys more effectively deal with their increasing reliance on communication by email. The course covers dealing with email effectively, dealing with spam and viruses, the ABA Opinion on Email Encryption and offers best email tips for attorneys.

As a bit of warning, it is highly likely that the "Legal Technology Primer" collection of my articles will soon no longer be available for free access in its entirety on my web site.

Posted by dmk at 11:04 AM

September 17, 2003

Second Pair of Eyes - Services for Lawyers

I can't even count the number of people lately who tell me that I should be offering my services to other lawyers who are unfamiliar with IT and e-commerce contracts.

Even I can get the message.

As a result, I'll be doing something new, which I call "A Second Pair of Eyes." Essentially, I will review contracts and agreements related to IT contracts, software and IP licenses, e-commerce and other Internet agreements, for other attorneys who would like to get another set of eyes to check to see if they've missed anything major, mishandled an important issue or left important issues unaddressed. I'll do that with respect to agreements being drafted, agreements being negotiated, and agreements being evaluated and interpreted for further action. And, I'll do that on a flat fee or hourly basis. The idea is to consult with you and help you out, in the background.

The problem I see is that most attorneys do not see documents in this area often enough to be comfortable working with them or reviewing them. Many attorneys also have little understanding of the underlying technologies and the common issues, let alone the areas that are commonly subject to negotiation.

Sound appealing? Just get in touch with me and we can talk about your needs.

Posted by dmk at 01:09 PM

The Current State of Big Firm Legal Tech - Law.com

Law.com unveiled today a trio of important articles on its annual survey of legal technology in the larget firms in the US. All are definitely worth study by those interested in legal technology. As always, I have concerns about drawing too many conclusions based on self-reported answers, but these stats are about as good as it gets and they are worth studying for evaluating trends.

One general comment before touching on the three pieces: if you look at the litigation technology list for a firm that claims to be a major litigation firm and it does not list CaseMap, you really need to question its sophistication in its approach to the technology of litigation.

The first article by Amy Vincent is called The Client Comes First and attempts to draw some conclusions about key trends in legal technology. It's a solid piece and, since I've been preaching about client-driven technology for a while now, it should be no surprise that I agree with the sentiments expressed in the title.

I believe, however, that those not in the legal profession will be surprised at how extranets are still treated as a novel technology. I think that a close reading of the article also shows that technology decisions in law firms are still being made for the convenience of IT departments rather than practicing lawyers. This issue is an important one and will continue to contribute to the decisions of large firm lawyers to leave and start solo or small practices and the heavy attrition of young lawyers.

Finally, there's an amazing story about a Microsoft rep who couldn't justify to a firm why they might move from Word 2000 to Word XP. Just a thought: how about the raft of legal-specific features developed with the assistance of a legal advisory board? On the other hand, I forgot that those features benefit individual lawyers, not IT departments, and may be a hard sell.

The second article is the 8th Annual AmLaw Tech Survey itself. As always, this survey is a highly valuable resource. I recommend that anyone interested in legal tech, especially software vendors, study these results.

One question: how many of these firms who are still running Word 97 think that their clients will be impressed by that fact? I'm sure it's a great recruiting and associate retention tool as well.

The third article is called The Basics and gives the raw data on questions and answers.

Again, the value of this material is really in helping spot trends. One interesting point: over 1/3 of the top firms in the country have not done a security audit in the last year. That might be a reason the Blaster family of worms hit large law firms pretty hard recently.

Posted by dmk at 12:45 PM

Demystify It: Adam Wolfson

Adam Wolfson's article on suicide terrorism presents some conclusions based on a study of all the suicide terrorism events to date. As with many things, looking at the statistics and hard numbers should lead to better conclusions than simply relying on gut instinct. In this politically charged atmosphere, I doubt that all of Wolfson's conclusions will be accepted, and my sense is that some of the emphasis is not quite right, but it's good to start from something solid.

This article is especially worthwhile as a way to start to think about this barely-possible-to-understand phenomenon and its implications.

Posted by dmk at 11:56 AM

Forensic Biology: IT and 9/11

This article from Bio-IT world covers the herculean efforts made to identify 9/11 victims and the progress in technology that was made as a result. Fascinating, and uplifting, story.

Posted by dmk at 11:47 AM

The Digital Practice of Law Newsletter

Attorney and legal tech expert Michael Arkfeld has a legal technology e-mail newsletter that I believe will be especially useful for litigators. The current issue has a feature on electronic discovery.

Arkfeld is the author of the excellent book, The Digital Practice of Law (see my review of the book). He has also written a new treatise on electronic discovery called Electronic Discovery and Evidence.

Posted by dmk at 11:41 AM

PlantingbytheMoon.com

To everything there is a season. My brother has a cool web site called PlantingbytheMoon.com that covers some of the ancient arts of astrological gardening and also shares some of his insights as a Master Gardener.

I can definitely vouch for his expertise in gardening.

If you're interested in gardening, check out his site.

Posted by dmk at 11:30 AM

The Harrow Technology Report

A plug for one of my favorite e-mail newsletters, The Harrow Technology Report, which has, for many years, done a great job of covering the cutting edge in technology developments.

Posted by dmk at 11:25 AM

Identifying Start-up Programs

Here's a great resource for identifying those mysterious files that run when your computer starts up.

Periodically checking these files will help you see what's going on without your knowledge, and not all of it is good.

Posted by dmk at 11:22 AM

Spreadsheets Forever

Is it 25 years already? CFO Magazine has an interview with Dan Bricklin, one of the creators of the spreadsheet program, on the past, present and future of spreadsheets. Lots of good ideas in this article.

Posted by dmk at 11:17 AM

American Computer Choppers

I got hooked the other day on the Discovery Channel's motorcycle design and building shows. And I'm not even close to a motorcycle person.

In particular, there was a show called The Great Biker Build-Off in which a designer/builder named Indian Larry made the argument that building choppers was a true art form and would one day be recognized as such. He then backed up his words by building an absolutely stunning bike.

So, I started to think about other places where the notion of "choppers" might come into play.

Why not PCs?

Lo and behold, Wired magazine has a piece on custom fabrication of PCs. Cool stuff.

Is there a market for this? I think there might well be.

Posted by dmk at 11:05 AM

September 16, 2003

Restless Nights - Great Sleep Apnea Resource

I have been trying to find a really good book on sleep apnea for quite a while now. I've now found Sleepless Nights, by Peretz Lavie, and recommend it most highly.

Lavie points out that sleep apnea as a diagnosis virtually did not exist until the last 20 years or so, even though reports of the symptoms go back quite a while in the literature. The "newness' of the condition is part of the reason for the lack of standard popular references.

Now, we are beginning to understand that perhaps 1 out of every 4 males over the age of 40 (and I'm one of them) has some level of sleep apnea. I'm certainly starting to run into a number of people with it.

Lavie's book is quite good, perhaps a little long on the history, but he's an insider and it is an interesting vantage point he provides. I stayed up way too late reading the book from cover to cover.

He also does a great job of sorting through the symptoms, diagnosis and treatment options.

If you have sleep apnea or live with someone who does, this is a highly recommended read. If someone is complaining about your snoring, you probably will want to give this a look.

Most important, if you have a sleep apnea diagnosis and have decided to forego using a CPAP mask, you must read this book and reevaluate your decision.

Posted by dmk at 02:04 PM

September 15, 2003

See Me on AITP Expert Panel on Computer Security in October

I'll be one of the speakers on what promises to be a great session on computer security at the Chief Information Officer Security Forum on October 25, 2003 in St. Louis. It's a great panel and there will be plenty of time to cover a wide range of issues. I'm excited to hear what everybody else has to say, let alone be a speaker too.

Here's the press release with more details:

AITP CONFERENCE TACKLES INTERNET SECURITY TOPIC

How does your information technology department protect office computers from being invaded by the latest worm, virus or Trojan horse? How are you going to handle the Sarbanes-Oxley Act? What are the legal issues involved?

Internet security is just one of the hot topics that will be discussed at the 2003 Association for Information Technology Professionals Conference to be held Thursday through Saturday, Oct. 23-25, at the Millennium Hotel in St. Louis.

Information technology executives responsible for security are invited to the highlight of the conference, the Chief Information Officer Security Forum, from 9 a.m. to 2:30 p.m., Saturday, Oct. 25. A panel of experts from a variety of industries will discuss risk management, Web security, wireless security, legal and regulatory issues and best practices.

“Security is not just a technological issue anymore,” said Attorney Dennis M. Kennedy, one of the CIO Security Forum panel members. “There are legal implications of your security practices. With virus authors now facing prison time, no one should be surprised to see lawsuits against businesses that do not take adequate procedures to prevent the spread of viruses, worms and other malicious software.”

The panel also includes experts from MasterCard International, Omni Tech, SBC Services, Washington University, Novell, People’s Energy, FBI St. Louis office, A.G. Edwards, and Robert Half Technology.

“This diverse panel was put together with the purpose of demonstrating to attendees that all industries have security issues and that all security issues are not created equal,” said Christine Leja, Security Forum coordinator and chief information officer at Southwestern Illinois College in Belleville, Ill. “Our hope is that critical business industries are represented so that everyone in the audience can relate their set of issues to those of a panel member’s.”

Leading up to Saturday’s CIO Security Forum, conference participants can choose from three seminar tracks that will take place Thursday and Friday, Oct. 23-24.

The Security track will include discussions on trends, case studies, the myths of HIPPA Security and much more. This track is presented by Data Connectors of St. Louis.

The Management track will cover topics such as disaster recovery, IT portfolio management, and successful project Management.

The Technical track will address the topics of application management, trustworthy computing, and network security.

Registration information and a complete list of seminar topics and speakers can be found online at www.aitpstlouis.org/conference.

Posted by dmk at 11:24 AM

September 12, 2003

James Champy on the "Idea Recession"

"There's a growling bear in the marketplace of ideas." So says James Champy in this article wondering if our current tendencies toward retrenchment bode ill for creating the ideas and structures we need to evolve business in the coming years.

Posted by dmk at 02:03 PM

September 11, 2003

This Week's Windows Security Patch

Arrgh! Another Windows Critical Update for security. Apparently, since preparing the viruses to attack the new flaws will be fairly easy, time is of the essence in installing the update.

On the "What took so long to come up with this idea" front, the excellent Microsoft Watch site reports that Microsoft is preparing to release a convenient "all XP patches in one place" update.

Posted by dmk at 11:17 AM

Freeware Arena

Every now and then, I have the need for a simple software tool that I probably only need to use once or twice, or only need to use a single feature or two. The ideal solution would be a freeware program.

Unfortunately, adding the word "free" to a search for software on Google introduces a lot of "noise" into your results.

The excellent site, Freeware Arena is a great resource for freeware and will help you locate a wide variety of freeware programs. These are true freeware programs, not demos and trials. As always, if you like and use the programs, think about making a donation to the author. Great resource.

Posted by dmk at 09:28 AM

September 10, 2003

The Shadow of 9/11

One of the coolest things about no longer working in a law firm and being on my own is that I can take a morning and just go out and do something with my wife. One of the best things to do in St. Louis is to go to the Missouri Botanical Garden.

We were at the Garden last week on a beautiful September day, barely a cloud in the sky. As we walked through the Japanese garden, I found myself thinking, in spite of my efforts not to, that the sky was that "unbelievable blue" we'll now always associate with September 11, 2001.

It was an unsettling, disturbing feeling, made more eerie by the sound of a passenger plane flying over us, seemingly a little too low and a little too loud.

We all have associations and memories now. For me, the bluest clear sky holds a cloud you can't see.

Posted by dmk at 10:29 PM

ELawyer Blog on Demise of Legal Web Sites

Carolyn Elefant has a great post on the eLawyer Blog about a recent article about the lack of success of the early web sites designed to provide or enhance legal services.

Carolyn's analysis is right on target.

I might add a few other observations.

First, the interpretations of the ethical rules that affected many of these sites were murky at best and lawyers wanting to go all out with some of these ideas would have definitely taken a risk of disciplinary hearings (rightly or wrongly - it was just new territory). Whether a lawyer can add his or her name to some types of directories is still an unresolved question.

Second, the MDP (Multi-disciplinary practice) debate had a definite chilling effect (and I speak from personal experience here), because there were so many concerns being raised about what law firms could and could not do, whether you could hire non-lawyers, and, perhaps most important, there were arguments that in a legal service business a lawyer's compensation could be drastically limited because the lawyer could not receive compensation based on the work of the non-lawyers. This stuff was extremely complicated and difficult to figure out.

Third, many of the legal sites came into being in the go-go days of the dot-com era, leaving them vulnerable to underfunding and only a short-term business plan. We learned that it's difficult to build a lasting business based only on a clever domain name.

Fourth, no one ever quite figured out what part of the legal business could actually be delivered over the Internet. I think I know some of the answers, and I'll share those at my consulting rates, but most of these legal sites missed the mark.

Fifth, the visions of IPOs and making millions blinded people, moving them toward elaborate universal approaches and neglecting good, profitable niches.

Sixth, the failures scared everyone. Rather than learn from the failures, the general tendencies were to write off the whole idea. This reaction is a corollary of the typical view of lawyers that "the law is unique; the law is a profession, not a business."

Not suprisingly, I believe that after the shakeout, there are opportunities and we may still see very successful legal sites develop over the next few years - too many people are looking the other way and it's a good time to reinvestigate this area.

The eLawyer blog is definitely a great blog and well worth your attention.

Posted by dmk at 10:17 PM

Suggesting a Careful Reading Of the Creative Commons Licenses Before You Adopt One

I’ve been following the developments with the “Creative Commons” licenses with more than a little interest. These licenses, associated with Lawrence Lessig and other prominent people in legal and technology fields, are generally intended as a way to created standard usage licenses that will facilitate the “permission flow” in distributing, reusing and reprinting works. The intent of this family of licenses, which is very laudable, builds in many ways out of the Open Source license tradition.

Now, I’m a big fan of the Open Source licenses and the principles that underlie them. But, I have a significant concern about the Creative Commons licenses.

I speak about that concern now because it seems lately that many bloggers and legal bloggers, in particular, are adopting the Creative Commons licenses, almost as a badge of honor, often in a congratulatory “welcome to the club” fashion. The extent of adoption by lawyers and the fact that Movable Type makes it a simple choice to add the license also seem to give the licenses a certain level of blessing.

I first saw the issue I'm concerned about raised on the SATN.org blog here and here. The analysis in the first post is very good and I recommend it to you rather than repeating it here.

The language at issue has the adopter of the license make a couple of warranties as is the case in, for example, Section 5 of the Attribution License. The language is:

“5. Representations, Warranties and Disclaimer

a. By offering the Work for public release under this License, Licensor represents and warrants that, to the best of Licensor's knowledge after reasonable inquiry:

i. Licensor has secured all rights in the Work necessary to grant the license rights hereunder and to permit the lawful exercise of the rights granted hereunder without You having any obligation to pay any royalties, compulsory license fees, residuals or any other payments;

ii. The Work does not infringe the copyright, trademark, publicity rights, common law rights or any other right of any third party or constitute defamation, invasion of privacy or other tortious injury to any third party.”

See Attribution License.

As a general rule, software is usually licensed both in the Open Source model and in the case of most consumer-oriented commercial software on an “AS IS” basis with no warranties whatsoever. This approach to warranties is a key element of both types of licenses. The rationale is that software can be distributed for free or at a low cost because only if it is offered without warranties. If the licensor had to provide warranties, the price of the software would have to be higher.

Quite ironically, the Attribution License itself leads off with a disclaimer that does in fact say that the Attribution License is offered on an “AS IS” basis with no warranties.

Why does this matter?

As an author, especially when there is no payment for my work, there is no way that I would agree to adding these types of broad warranties without receiving some kind of payment to compensate me for the additional exposure that I would have to expect because of that language. Similarly, I would not recommend that a client of mine give such warranties unless forced to do so because of the economics of the deal after fighting to eliminate them.

My question then is: why give these warranties when no one has asked for them?

I believe that anyone who uses a Creative Commons license without understanding this point and thoughtfully deciding to go forward is taking on unnecessary legal exposure.

I mention this because the Creative Commons blog yesterday posted about the new streamlined process and other responses that were made as a result of comments and suggestions made in the last nine months. If you look at the two postings from SATN.org, you’ll probably conclude, as I have, that the comments did not result in any changes and that the critique was rejected.

I do not use the Creative Commons licenses for my work, in no small part because for this very language, which I absolutely would never voluntarily include in any license for someone to reprint my work, especially for free. However, I have great admiration for the people involved and for the overall goals of the Creative Commons approach, and, frankly, wouldn’t mind being part of the Creative Commons community because of the way it could ease the process of giving permissions for the reprinting of my materials.

What I’m suggesting is that Section 5 be revisited (especially since Creative Commons is not giving the same warranties on its own licenses) and thought be given to amending the language to reflect the concerns of authors. It is important to note that the Creative Commons licenses are great licenses for republishers and secondary users of materials. Unfortunately, most bloggers fall into the author category and the licenses are less favorable than they are for republishers.

Until then, I suggest that bloggers be more circumspect in adopting the Creative Commons licenses, read the actual language of the license (not just the summaries), and then determining whether the language is something they can live with. In my case, I’m quite uncomfortable with this language and it seems unnecessary, especially in a world where “AS IS” clauses are pretty standard. Since Creative Commons licenses are not negotiated, I am reluctant to give away terms that the licensee would generally have to achieve by negotiation. I prefer an approach where the default provision is an "AS IS" type of provision.

Posted by dmk at 09:25 PM

September 09, 2003

Law Tech Guru Blog Debut

Jeff Beard is one of my "go to" experts on legal tech matters. He's now launched the Law Tech Guru Blog. Jeff has always done a great job of tracking done breaking tech news, providing great tips and reviewing products and software, so this blog should be a great resource for lawyers interested in using technology well. Highly recommended.

Posted by dmk at 10:20 AM

September 08, 2003

Gadget Mania

The newest issue of the ABA's Law Practice Today webzine debuts a new thematic approach. This month's theme is gadgets, and their are a number of articles on cool gadgets. I also unveil a new "links" column that I'll write for each monthly theme. This column on gadgets is one of my favorite pieces in quite a while, and I can assure you that you'll find all sorts of great info and resources on gadgets, plus a few new ideas from the cool things I found while researching the column.

I've been wanting to write a links-oriented column for a long time, so I'm really excited to get the chance to do so. My reaction to getting a new column kind of bears out my sense that I've become a writer who also practices law instead of a lawyer who sometimes writes.

Posted by dmk at 09:41 PM

September 04, 2003

A Nanotech Primer

Great article by Adam Keiper will jumpstart your education on nanotechnology for the non-nanotechnologists and serve as a great primer on the subject. Highly recommended.

Another good overview in plain language, in book form, is Nanotechnology: A Gentle Introduction to the Next Big Idea
by Mark and Daniel Ratner. Also highly recommended.

Posted by dmk at 09:57 AM

Contract-oriented Architecture - SLAs

IT contracts really do matter. It makes little sense as a business or legal matter to enter into vague service level agreements. This piece on the Loosely Coupled weblog does a very good job of concisely explaining this point and suggests a much better way to approach these agreements.

Posted by dmk at 09:49 AM

September 02, 2003

Client Service Ideas - Answering the Old Estate Planning Question

I'm on a legal listserv and there was recently a thread on what an attorney should do with clients who get drafts of their wills, et al. and then never get back to the lawyer about executing them. The lawyer wondered whether his problem was unique and if there were good ways to move the client along and, not so coincidently, get paid. This lawyer tended to have his secretary make a follow-up call to schedule an appointment, with limited results. There were a number of great suggestions on what to do on a "going-forward" basis, but the thread ran primarily toward the "send them a bill and see if they call" approach.

Now, I'm not necessarily critical of that approach, especially in certain situations, but I also see this as potential opportunity reach a happy result for everyone.

I practiced exclusively estate planning law for over ten years, so even though my focus now is quite different, I had a few thoughts on this topic that I thought might be worth sharing on this blog as well.

And, of course, there's no good reason not to repurpose listserv responses into blog posts.

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The first rule of an estate planning practice: you can lead a client to the will, but you can't make him/her sign it.

This nearly-universal problem stems from the fact that most people dread stepping up to signing their wills and usually only do so willingly when faced with a "focusing event," and, in my ten years of estate planning, nothing focused people more than a plane trip. My only a-little-bit-less-than-serious answer might well be that your best approach might well be making reservations for a plane trip for them.

To me, the issue is largely one of communication. Many people simply do not understand that they need to formally execute the documents and how to do so, no matter how well you explained it or set it out in writing. It's not particularly your fault or theirs - people are just largely unaccustomed to working with lawyers and don't know the steps we take for granted (in a surprising number of cases, they may even know exactly what "drafts" are).

I say, pick up the phone, call them personally and see if they have any questions and schedule an appointment (transfer them to your secretary, if appropriate, only to schedule). Why wait around? Why let your first contact after they receive the drafts be a bill or a call from your secretary? In most cases, they're expecting you, the lawyer, to tie up the loose ends and tell them what comes next, or they may simply be puzzled by the quantity of documents ("what's this trust?" or "why are their documents for each of us?") or language they can't understand (slip some of my old technical generation-skipping transfer tax clauses on for size). A shocking number of clients simply do not even read your cover letters. In any of these events, they will welcome the call from you and not from your secretary. Show them that they are first-class clients (our saying at The Stolar Partnership was that we only had first class clients - no second-class clients) and that their matter rates the personal attention of their attorney. We tend to forget that estate planning raises many uncomfortable emotions for many people. It is definitely true that some people believe that signing a will means that you will die soon.

There are dangers of letting drafts hang out there a long time: people can die or become incompetent, family situations can change drastically, people can and do "sign" wills (even ones clearly stamped "DRAFT") and think that they are covered, and there are other instructive stories that I might share at another time. In addition, collection gets more difficult the longer it gets to be after the work is done.

I do question the approach of just sending the bill - won't your word-of-mouth be better if you're known as the lawyer who called to check to see if everything was OK instead of the lawyer who sent me a draft and a bill and never talked to me? I'm not being critical of other lawyers using the "send the bill" approach - I tended to be more of a "send a letter" estate planning lawyer than a "call them up" lawyer and in some cases sending the bill is the only way to get someone's attention - but it's worth considering what image you want to create. I also suspect that spending just one morning making phone calls to your clients who have been holding drafts the longest will more than pay for itself in cash flow.

The great thing is that by following-up and scheduling a quick appointment, you can present the invoice in person at the signing and more than likely get a check on the spot, and everyone leaves happy and smiling, with the client telling you that she will be sending her neighbor to you.

Then, you can go back to your new clients with a new engagement letter that takes a "half of the fee upfront" or "half on completion of draft" or other preferred fee arrangement type of approach. Lawyer X's approach of scheduling the signing appointment at the initial meeting is also a very good approach to consider for future clients, especially in the case of standard estate plans. That should really help with both project flow and cash flow and reduce collection concerns. The ultimate scenario, of course, is to have the initial meeting, generate the documents by document assembly while the clients go to lunch and sign the documents and get your check when they return from lunch. A very nice day's work, if you can find it.

Posted by dmk at 09:45 PM

Issue 5 of My Newsletter - Checklist of IP Ownership Issues

The latest issue of my Practical Technology Contract Review News is now on my web site. The feature article is called "Ten Key Intellectual Property Ownership Categories You Must Understand" and gives an overview of my approach to uncovering and dealing with intellectual property ownership issues in technology contracts. As ever, my focus is on the practical issues. The issue also includes some good links and tips.

When I was watching the Nascar Southern 500 this weekend, a practice that has been condemned by commentators who seem to advocate only personality-free blawgs, I started to think about the whole Nascar approach to sponsorship and advertising. My only logical conclusion: maybe it's time to find a sponsor or two for some of my efforts, such as my influential newsletter with a good and growing audience of people involved in technology law.

Interested? Let's talk.

Posted by dmk at 02:17 PM

September 01, 2003

The Internet Roundtable on Blogging, Part 2

I must admit that my favorite part of our two-part series on lawyer blogging was Part 2, which makes its appearance on LLRX.com.

The focus of part 2 is on news feeds and aggregators, which are still, to me, the coolest and most revolutionary part of the whole blog phenomenon. It's interesting to see how quickly this area has developed in the relatively short time since the article was written. In the article, I talk about using Amphetadesk as a news reader and have now completely shifted to FeedDemon.

Thanks to Sabrina for publishing the piece, and, of course, to our special guests, Ernie the Attorney and Tom Mighell, both leaders in the world of blawging.

Posted by dmk at 02:46 PM

Recovering after Minor Surgery

I've been on the mend after minor surgery last week - fixing my deviated septum with the hope of helping my sleep apnea problem. I'm started to get back into the swing of things, but was reminded that "minor surgery" is a term that only applies to surgery to someone else other than yourself.

Posted by dmk at 02:33 PM